III. Comments on the Text on the Draft Electoral Law 

A. Electoral system, suffrage rights and basic principles

The Venice Commission and the OSCE/ODIHR are aware that the five-year residency limitation is based on Article 76 of the Constitution of Ukraine. The Ministry of Justice explained that any previous recommendation concerning candidacy requirements cannot be addressed because the change necessitates amendment of the Constitution of Ukraine. However, two issues should be taken into account in this respect: Ukraine is in the process of revising its Constitution and, therefore, such an amendment could be introduced. Secondly, there are international obligations that are binding on Ukraine. Ukraine has ratified the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The fundamental right of suffrage is contained in Article 25 of the ICCPR and Protocol 1, Article 3 of the ECHR. General Comment No. 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted by the Human Rights Committee on 29 March 2004 (2187th meeting), clearly states: “Although article 2, paragraph 2 [of the ICCPR], allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty.” The Constitution of Ukraine allows both the executive and legislative branches of government to submit proposals for amending the Constitution. The Venice Commission and OSCE/ODIHR recommend the necessary legal changes be made to Ukraine’s domestic law to give effect to Ukraine’s obligations under Article 25 of the ICCPR[1] and Article 3 of Protocol I to the ECHR.

[1] Residency requirements must always be reasonable. See General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service, 07/12/1996, CCPR/C/21/Rev.1/Add.7.